Mondonedo v. Henderson

• Decision Date: 09 August 2012
• Docket Number: CASE NO. 12-3082-SAC
• Parties: RALF MONDONEDO, Plaintiff, v. KEITH C. HENDERSON, et al., Defendants.
• Court: U.S. District Court — District of Kansas

RALF MONDONEDO, Plaintiff,
v.
KEITH C. HENDERSON, et al., Defendants.

CASE NO. 12-3082-SAC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

Date: August 9, 2012

MEMORANDUM AND ORDER

This civil complaint was filed by an inmate of the El Dorado Correctional Facility, El Dorado, Kansas. Before screening of the original complaint was completed, plaintiff filed an Amended Complaint (Doc. 8). The original complaint is completely superseded by the Amended Complaint, and the original complaint shall not be considered further.

Plaintiff attempts to sue his ex-wife for damages based upon the claim that she forged a prior co-signor's signature on additional law school student loans for him causing him to become indebted for $60,000. He also sues an Assistant County Attorney for damages, based upon the claim that he aided plaintiff's ex-wife in escaping prosecution for her crimes against plaintiff. Plaintiff is required to show cause why this action should not be dismissed for lack of jurisdiction and failure to state a federal constitutional claim.

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ASSESSMENT OF PARTIAL FILING FEE

The statutory fee for filing a civil complaint is $350.00. Plaintiff has filed three Motions to Proceed Without Prepayment of Fees (Docs. 3,4,5), and has attached to one an Inmate Account Statement in support as statutorily mandated. He is reminded that under 28 U.S.C. § 1915(b)(1), a plaintiff granted such leave is not relieved of the obligation to pay the full fee of $350.00. Instead, he is merely entitled to proceed without prepayment of the full fee, and to pay the filing fee over time through payments deducted automatically from his inmate trust fund account as authorized by § 1915(b)(2).

Furthermore, § 1915(b)(1) requires the court to assess an initial partial filing fee of twenty percent of the greater of the average monthly deposits or average monthly balance in the prisoner's account for the six months immediately preceding the filing of a civil action. Having examined the records of plaintiff's account, the court finds that the average monthly deposit was $ 52.08, and the average monthly balance was $ 13.15. The court therefore assesses an initial partial filing fee of $ 10.00, twenty percent of the average monthly deposit, rounded to the lower half dollar. Plaintiff must pay this partial fee before this action may proceed further, and is given time to submit it to the court. His failure to comply within

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the time allotted may result in dismissal of this action without further notice.

SCREENING

Because Mr. Mondonedo is a prisoner, the court is required by statute to screen his complaint and to dismiss the complaint or any portion thereof that is frivolous, fails to state a claim on which relief may be granted, or seeks relief from a defendant immune from such relief. 28 U.S.C. § 1915A(a) and (b); 28 U.S.C. § 1915(e)(2)(B).

A court liberally construes a pro se complaint and applies "less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, this case presents the unusual circumstance that Mr. Mondonedo apparently completed law school and was employed as an attorney prior to his incarceration. In any event, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The court "will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." Whitney v. State of N.M., 113 F.3d 1170, 1173-74 (10th Cir. 1997).

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FACTUAL BACKGROUND, ALLEGATIONS, AND CLAIMS

Mr. Mondonedo is serving sentences for convictions of Rape, Attempted Aggravated Incest, numerous counts of Aggravated Indecent Liberties with a child, and Criminal Sodomy with a child. The victim of these crimes is the daughter of defendant Noe. She was also plaintiff's stepdaughter. Plaintiff names as defendants his ex-wife Tiffany Noe who now resides in Texas; and Keith Henderson, Assistant District Attorney, Shawnee County, Kansas.

As the factual background for his complaint, plaintiff alleges as follows. On January 5, 2009, he attended a pretrial hearing in a civil case he had filed against Sallie Mae regarding his student loans. At this hearing he "discovered that Tiffany M. Noe had forged the signatures of plaintiff, plaintiff's sister, and plaintiff's brother-in-law, with the intent to defraud" and thereby obtained loans in the amount of about $60,000. Plaintiff telephoned Noe and said he would be home later to discuss her forgeries. When plaintiff arrived home, an officer from the Topeka Police Department (TPD) was waiting and informed him that "allegations of sexual misconduct were made" against him by defendant Noe regarding plaintiff's 16-year-old stepdaughter. About three months later, defendant Noe "left the State of Kansas."

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Defendant Noe testified at plaintiff's criminal trial. During questioning by defense counsel, she "admitted that she had signed and/or created and mailed documents for the loans she obtained" in the amount of about $60,000. However, she additionally testified that she was directed by David Deatherage to co-sign on his behalf. David Deatherage testified that he "never gave authorization" to Noe to sign any documents on his or anyone else's behalf. Plaintiff alleges that at no time did he or either Deatherage give Noe authority to sign or make any loan document. Plaintiff is liable to Sallie Mae for the money "stolen" by Noe. The Deatherages filed complaints with the TPD regarding the forgeries by Noe. Defendant Henderson "agreed and conspired with" Noe that if she would testify against plaintiff at his trial for sex offenses, she would not be prosecuted for her crimes. Noe left Kansas on the advice of defendant Henderson with the intent to "avoid prosecution" until she testified against plaintiff. Upon plaintiff's "information and belief," defendant Henderson's intent was to cover-up and clear Noe of wrongdoing in order "to qualify her as a good witness against plaintiff." Defendant Henderson acted "as the legal representative" of defendant Noe and "helped her to abscond." Henderson was aware of Noe's crimes but "prevented plaintiff from bringing his claims" against her. Plaintiff asked defendant Henderson to investigate and prosecute Noe, but

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Henderson refused and advised others against it. The TPD refused to investigate "due to the recommendation given by (defendant Henderson)." Henderson "had ulterior and ill motives toward plaintiff based on race, and/or gender, and/or political reasons." Defendant Noe used defendant Henderson "and the office of the District Attorney to prevent plaintiff from obtaining remedies."

Plaintiff claims in counts I and II that defendants conspired to and did violate his constitutional rights by denying him due process and equal protection of the law. He cites 42 U.S.C. §§ 1985, 1986¹ and 18 U.S.C. §§ 241, 242; as well as "State laws," specifying only K.S.A. 21-3302 (now K.S.A. 21-5302, which defines the crime of conspiracy to commit a crime).

In Count III, plaintiff claims that defendant Henderson did not act "to prevent the violations of plaintiff's Constitutional Rights." He cites 42 U.S.C. § 1986, 18 U.S.C. §§ 241, 242 "and State law."

In Counts IV through VIII, X through XII, and XIV, plaintiff claims that defendant Noe committed various crimes: perjury, subordination (sic) of perjury, mail fraud, bank fraud, theft, identity theft, aggravated identity theft, identify fraud, forgery, and making false information. As legal

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authority for these counts he cites the following federal statutes found in Title 18 U.S.C: §§ 1621, 1622, defining the crimes of perjury and "subornation of perjury;" § 1341 defining the crimes of frauds and swindles; § 1344 defining the crime of bank fraud; and § 1028A defining the crime of aggravated identify theft. He also cites the following Kansas statutes that define state criminal offenses: K.S.A. 21-3805(a)(1) defining perjury, K.S.A. 21-4018(a)(currently K.S.A. 21-6107) defining identity theft and identity fraud; K.S.A. 21-3701(a)(1),(2) defining theft; and K.S.A. 21-3711 defining making false information. He claims that defendant Noe's commission of these crimes was with intent to violate, and resulted in violation of, his constitutional rights.

In Count IX, plaintiff claims that both defendants "obstructed the legal process." He cites K.S.A. 21-3808, which defines the state offense of obstructing legal process.

As Count XIII, plaintiff claims that both defendants denied his civil rights. For legal authority, he purports to quote K.S.A. 21-4003(a)(1) as prohibiting the denial of use of services of any state agency on account of "race, color, ancestry, national origin or religion." However, K.S.A. 21-4003 is currently K.S.A. 21-6002, and defines the offense of "official misconduct" by a public officer or employee. He also

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cites K.S.A. 21-3808, which is currently K.S.A. 21-5904(a)(2) and defines the crime of "interference with law enforcement."

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